https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8329

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL CASE NO. E017 OF 2022** **REPUBLIC……………………………………………………………….PROSECUTOR** **VERSUS** **DANIEL ODHIAMBO OMOGI ALIAS JARASTA JARAMOGI…………..ACCUSED** **JUDGMENT** The Accused person in this matter is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that the Accused Daniel Odhiambo Omogi alias Jarasta Jaramogi on the 15th day of May, 2019 at Arambe Sub-Location, East Kanyamkago Location within Rongo Sub-County in Migori County within the Republic of Kenya murdered Abraham Omiti Owiti PW1 70 years old Francis Ondere Omukunye testified that he was from Luoro village in East Kanyamkago and he was a farmer and a businessman. He said that in 2018 he was staying with Daniel who was his herdsman. He identified Daniel as the accused before court. That when the accused started staying at his home, he had unkempt hair. That when he started paying him, he went to plait his hair. Thereafter he started buying girl dresses skirts and blouses. Subsequently he started making Opasi Girls uniform. That around 7th to 8th May 2019 PW1 said he harvested sugarcane and delivered to Transmara and half of it was used as seedlings. PW1 said there is a path besides his farm which goes to Luoro School which was being used by children to go to school. He said he had been sick since 2017 to 2018 ad he used to go to the clinic in Eldoret. That on 12th May 2019 he sent Daniel to the parcel of land where he had planted sugarcane and on 13th May 2019, he went to check how planting sugarcane had been done. On 14th May 2019 he went to Eldoret and returned home on 15th May 2019 and found Daniel at home cleaning the compound. That at 6.00pm Assistant Chief John Ogina called and told him that his herdsman had apprehended a young man on claims he was picking left over sugarcane. The young man who was apprehended was with 2 others. That the Assistant Chief told him relatives of the missing boy were going to his home. That he didn’t tell Daniel but when those people arrived, they found Daniel missing. That at 7.00pm he heard people raising alarm and call for assistance to search for the missing boy. My 2 wives left to go and help search for the missing boy but he was not found. The following day at 6.00am I heard screams that appeared like it was a death. When I heard screams, we went and found the body of the missing child had been found. The neck had been decapitated and was loosely held by some skin. He said his farm was surrounded with sugarcane and he went to scene and saw inside the sugarcane plantation blood was splattered on the sugarcane in a neighbours farm. PW1 said he got so shocked and angry and he decided to go back home. That Police went to his home and he showed them where Daniel used to sleep but he was not found. That Daniel went underground after the incident and in 2022 he was in one of his wives home when at 10.00pm he heard screams at the other home and when he went he found Daniel had been brought to his home from Awendo. That he came on a motor bike and the cyclist said Daniel had paid Kshs. 400 so he could be brought to the home. That he had one big luggage. PW1 cautioned his sons not to make noise as the person would be killed at his home. We managed to take the suspect to Oyani. When at Oyani I called the parents of the deceased who came to the police station. Police from Uriri came and collected Daniel together with the cyclist. The deceased was not known to me as his home was some distance from my home. When I went to Eldoret on 14.5.2019 I had instructed Daniel to go and confirm if the sugarcane I planted was properly planted. When I returned I found Daniel cleaning around his house and I was even surprised. Assistant Chief called and told me there was a child that was missing and it is Daniel who had apprehended him. Once the sugarcane had been cut even cows graze on the fallow land and people could also pick sugarcane from the field. Daniel disappeared from the home on 15.5.2019. The next day we learnt he was in Masai land and people went to trace him but he was not found. In cross-examination by Ms. Agade Advocate PW1 said that Daniel was his herdsman on and off. That he stayed in his home from 2018 up to 15.5.2019 when the incident occurred. He said he had not experienced Daniel’s weird behavior. His home was about 5 – 6 kms. That the accused person’s dress code had nothing to do with the offence in court. He said he was not at home when the incident occurred and only received a call from Assistant Chief. That when the body of the deceased was recovered it was removed and brought to the path. The scene was inside sugarcane plantation on the 2nd lane neighbouring his farm which was fallow. He said he went to the scene and saw a pool of blood some of which was splattered even on sugarcane leaves. The deceased was not known to him. PW2 Joyce Adhiambo Owiti from Ahenyo village in Uriri said she is a taylor. She said she stays with her husband David Owiti Odongo and children namely Joan Akello Owiti – 18 years, Joseph Hitler – 13 years and Abraham Odhiambo Owiti. She said the deceased was older than Joseph. She recalled that on 15.5.2019 she left home at 12.00pm to go to church for a meeting and at 5.00pm she her brother-in-law and instructed that Abraham should get one hen and take to her in church. That her brother-in-law Jared Omondi told her he had not seen Abraham at home. That she then decided to go back home. That on arrival at home she picked her masai shuka and proceeded to the home where Omogi stays. That she went and found Daniel and asked where the child he had arrested was and he denied having apprehended any child. She said it is her brother in-law who told her that it is Omogi who held her son on their way from school. She said Abraham had come from school with his sibling when Omogi held him on the way at 1.00pm and she went to the home where Daniel stayed in the evening on the same day. PW2 said she was informed Omogi apprehended Abraham and dragged him into sugarcane plantation. Since there was no one else at the home where Daniel was staying, she decided to go to Mzee Francis second home. While there Mzee Francis’ son one Otieno came and she explained to him what happened. That Otieno send his brother to call Daniel and when Daniel came, he denied having apprehended PW2’s child. PW2 said she left and went to report at Oyani and also to the Assistant chief and village elder. That the Village elder accompanied her to Mzee Francis’ home and together with Mzee Francis they went to search for Daniel but did not find him. That her husband and brother in-law also came and they went back home. On the way home they heard alarm. It is her mother-in-law who raised alarm so that people could help us search for Abraham. That they searched up to 1.00am. The next day they went for search at 6.00am. That her brother-in-law went ahead and upon entering sugarcane plantation next to fallow farm the body of Abraham was found inside at the second line and he raised alarm. That Abraham had been killed by cutting the neck. That the brother-in-law carried the body to the foot path where it remained up to the time police came to collect the body. PW2 said she did not go to the scene where the child was killed. That Daniel went underground and she didn’t see him after the body of Abraham was recovered. She went to identify the body for post mortem. Abraham’s neck was decapitated. In cross-examination by Ms. Agade Advocate PW2 said she knew Daniel worked and stayed at mzee Francis’ home. She said the incident happened on 15.5.2019 on Wednesday. That it was at about 4.00pm towards 5.00pm that she learnt Abraham was missing. The moment she learnt from her brother-in-law Jared Omondi that Abraham was missing she left to go back home. She said her son Joseph Atila told Jared Daniel apprehended Abraham on their way from school. When she went to Mzee Francis home 4she found Daniel picking litter at home in the compound. The body of Abraham was recovered in the morning in the sugarcane plantation next to Mzee Francis farm. She said she didn’t go to the sugarcane plantation where the body was recovered and she didn’t see Daniel cut Abraham with a panga. Voire dire examination was conducted upon PW3 Joseph Hitler Owiti 14 years old and the court found he was intelligent enough and understood meaning of taking oath and so it was ordered that he gives evidence under oath. He said that he lived in Ahenyo village and was Grade 7 student at Luoro Junior Secondary School. He recalled that on 15.5.2019 he was from school going for lunch and he was with his brothers Abraham and Clinton Okeyo, Victor Otieno. He said Abraham was 11 years old by then. He said he didn’t know the ages of the other children. That they went to pick sugarcane from Andrew’s farm. Abraham was ahead of them and met with Omogi who held him by hand. When Omogi held Abraham, they ran away. PW3 identified the accused in the dock as Omogi. He said he had known Omogi for a short time. By the time Omogi held Abraham they had picked sugarcane. That they ran home when Omogi held Abraham and slapped him with a panga on the back. That when he went home, he didn’t find his mother but he found his grandmother Carolina Adhiambo. After that he and his cousin brother Samson Fabby went to play football. That while playing football his mother made phone call to the grandmother and instructed her that we should take to her a hen and maize to church. That he and Wilberforce took the hen and maize to church and they remained in church until the next day. That when they returned home the next day, they heard people wailing and saying his brother had died. That when he went to church, he met his mother and she asked where Abraham was. That he told her Omogi had arrested him. PW3 said he arrived at church at 5.30pm when the mother left them in church and went home. PW3 said he went to where his brother’s body had been placed along the road. There were many people at the scene. Police came and collected body of his brother and he accompanied them to go and record his statement. PW3 said that from where Omogi apprehended Abraham to where he saw the body the following day was close. He said Omogi beat Abraham once with a panga. He said he saw his brother’s legs were tied with a leather belt and the neck was cut. He said he also saw small cuts on his brother’s arm. He saw the cuts on one side of the arm. By the time they went to church Abraham had not come back In cross examination by Ms. Agade PW3 said that he knew Omogi in 2019. That he used to see him herd Andrew’s cattle. He said he saw Omogi beat Abraham with a panga on the back. He said he did not know what happened thereafter. He said he could not remember having told his grandmother Omogi had arrested Abraham. Later he took hen and maize to church and he arrived at the church at 5.30pm. He said he told his mother what happened to Abraham. That the next morning he returned from church and heard screams and later found the body of his brother along the road. He said he did not see Omogi kill Abraham. PW4 Leocadia Adhiambo Anjuri 15 years old Grade 7 Student at Opasi JSS testified that on 15.5.2019 Omogi arrested a child and dragged him into sugarcane plantation. She identified the Accused in the dock as Omogi. She said it was at 1.00pm and she was with Dota, Joseph, Hitler and others when Omogi held Abraham and took him to the sugarcane plantation. There was sugarcane plantation which had been cut. That Omogi slapped the child with panga on the back. That the child was later found dead. She said they had entered the farm to pick sugarcane when Omogi came and started chasing them away. That he ordered Abraham to stand and went for him as he continued chasing them. He then held Abraham and led him into the sugarcane plantation. That they ran away as Omogi entered the sugarcane plantation with Abraham. That when she arrived home, she informed her mother that Wycliffe had held Abraham and entered the sugarcane with him. That her mother went to tell Abraham’s grandmother. That in the evening, she heard screams and they went out to search for the child up to 1.00am but didn’t find him. The next day in the morning she said they heard people wailing and when they went to the scene, they found Abraham’s body had been recovered and placed along the road. From the time Omogi held Abraham he was not seen again alive until the body was found PW4 said in cross examination that she was with Joseph Hilter and others when Abraham was arrested by Omogi. She said she stood at some distance and saw Omogi slap Abraham on the back using a panga and he entered sugarcane plantation. The following day they found Abraham had been killed. Omogi entered sugarcane plantation neighbouring Andrew’s farm. She said she didn’t see Omogi kill Abraham. PW5 Erick Ochieng from Oyani Masai village said he graduated from Kisii Polytechnic but was not yet employed. He said the accused person was their shamba boy between 2017 to 2019 when he committed the offence herein. That in 2019 when he was staying in Migori he received phone call that Jaramogi had murdered a school kid and was on the run. That on 20.9.2022 2022 Jaramogi re-appeared back at home at 10.45pm. He said he had retired to bed when he heard his mum screaming. When he got out, he found the accused person on a boda boda carrying some luggage’s. That the Accused purported he was back from Nakuru town. That he did restrain the accused with a rope and took him to Oyani Masai police station. The accused person disappeared from home in early 2019 after the child was murdered. He later recorded his statement In cross examination by Ms. Agade, PW5 said that he had known the accused for a period of 2 years. He said he knew Jaramogi used to smoke bhang and also used to take a lot of alcohol. He was however not aggressive and did not wrong anyone during the period he knew him. It was in early 2019 when Jaramogi committed murder. After he learnt that Jaramogi had killed a child he went home and found a crowd there was looking for the accused and wanted to burn our home. PW5 said he didn’t see the body of the murdered child and he didn’t go to the scene of murder or even to the mortuary. It is his mother who made phone call to me. PW6 Dr. Awinda Victor Omolo resident surgeon at Kampala International University – Western Uganda testified that he had post mortem report in respect of the body of Abraham Omiti Owiti done on 23.5.2019 at 10.04am at Rapcom Hospital Mortuary. He said the Post mortem was requested by Uriri police station. He said there was blood clot at the back. Body preserved in fridge. The death was caused more than 48 hours before examination. The body had blood clot all over. The short was blood stained. The head was decapitated. All the major vessels on the neck were cut. On the digestive system PW6 found the esophagus was cut. The Genito urinary system was normal The head was decapitated; the brain was normal; the spinal column was decapitated at the 2nd and 3rd vertebrae. PW6 concluded that cause of death was decapitation of the head. He filled the post mortem report and signed. The Administrator of Rapcom Hospital affixed the stamp. He produced Post Mortem Report as Ex P1. In cross-examination by Ms. Agade Advocate Dr. Awinda said he did not know who brought the body to the mortuary but request for post mortem was from Uriri police station. The body was identified by David Owiti the father of the deceased, the mother of the deceased and Corporal Yegon were also present. There was decapitation of the head from the body. He said he didn’t indicate what object was used in decapitation but my opinion is that a sharp object was used. PW6 said the possible object used was a sharp object like a panga must have been used to cut the deceased. PW7 No. 76880 Corporal Weldon Byegon. Attached at DCI Railways Nairobi was the initial Investigating Officer in this matter while working with DCI Uriri Sub County. That on 16.5.2019 at around 8.00am he was at the office in Uriri when his boss Chief Inspector Wanganga instructed him to proceed to Mbago Luoro village Harambee Sub Location East Kanyamkago to investigate a murder that had been reported. In company of the OCS Chief Inspector Osewe and PC Langat they proceeded to scene using station vehicle driven by Sergent Kimani. Along Luoro Oyani Masai road they found the body of a young man whose head had been cut off from the body. The body was in school uniform and his school bag was still hanged on the shoulder carrying books. The elder uncle of the deceased gave him the name of the deceased as Abraham Omiti Owiti and he told me they retrieved body from sugar cane plantation that was beside the road. He took me to where body was and we found some little blood. Some 5 meters away they found a pool of blood. He inquired who could have been the suspect and he was told that the deceased was found picking sugarcane in a field where sugarcane had been harvested. He was in company of other pupils while going home for lunch. That Daniel Odhiambo alias Jarasta Jaramogi who was taking care of the plantation while armed with panga then ordered the pupils to stop but the rest ran away and the deceased remained. Those who escaped were Leucadia of Opasi primary school, Joseph Atula and one Sling of Luoro primary school. Daniel held the deceased and he was seen slapping the deceased with panga while dragging him into the sugarcane plantation. That on inquiring where Jaramogi was he was told he had disappeared after committing the murder. PW7 did process scene by drawing sketch plan after which they took the body of the deceased to Rapcom hospital mortuary in Awendo. They also passed by the home where the accused was employed by Francis and searched for murder weapon but did not recover. He recorded statements of witnesses and on 23.5.2019 he did witness post mortem being done at Rapcom by Dr. Awinda after David Owiti and Joyce Owiti the parents of the deceased identifying it. Dr. Awinda filled post mortem and established cause of death as decapitation. Upon conclusion of investigations search for the suspect started. That on 20.9.2022 the suspect was arrested at Luoro village by Erick Ochieng and Maxwell when he returned to his employer’s home. He was escorted to Uriri police station and placed in cells. On 22.9.2022 the suspect was taken for mental examination and he was confirmed to be fit to stand trial. Later he arraigned him in court. The sketch plan is in court and I wish to produce it EXP 2 In cross examination, PW7 said that murder was committed on 15.5.2019 and he went to scene on 16.5.2019. When he arrived at scene, he established the deceased and other pupils were on their way home at 1.00pm for lunch when the accused held the deceased and dragged him into the sugarcane plantation. The body was recovered at 6.00am and they got report at 8.00am. They found the body besides the road and clothes had blood stains. The head and the trunk were separated. They We didn’t recover the sharp object used to decapitate the head of the deceased. He said he didn’t find the accused at the scene. The mother of the deceased said the accused had disappeared. The elder uncle to the deceased led him inside sugarcane plantation where he saw blood stains on one spot and a pool of blood on another spot. DNA analysis was not conducted as it was not necessary. Joseph Atula and Leucadia were with the deceased on the material day when they were going home for lunch. At the scene he could not tell if Joseph and Leucadia were present as there was a big crowd. He said the evidence he had given is what he saw and what he recorded in the statement of the witnesses. From statements he recorded, it is the accused who committed the offence. He said that they didn’t recover the weapon when he passed by accused person’s house in the employer’s home. In re-examination PW7 said that when he entered the sugarcane plantation, he saw 2 points where there was a pool of blood and another with little blood. He said he didn’t recover murder weapon and accused also went underground and he could not request for DNA. When the prosecution closed its case, the accused was placed on his defense and he gave sworn statement and said that he came from Oyani Masai. He said that on 15.5.2019 he was at home working. That there was a woman who came at 3.00pm and inquired about her child. She asked if the accused had seen her child and he told her he had not seen her child. At 7.30pm he was standing at the door when a neighbour known as Francis Odero went and attacked hime for unknown reasons. That he was beaten and he escaped. He said Francis went with other people who were not known to him and they beat him and ordered him to leave. That he escaped and went to Eldoret. That he went to Kurgat’s place to look for work and he engaged him. While in Eldoret he decided to go back home to visit his people. He said he was away for 3 years and he returned home in August 2022. When he arrived home neighbours saw him and raised alarm and he was apprehended while being beaten. That he was taken to Oyani Masai police post by his neighbour Francis and he was told to record his statement. He said he was able to record a statement while being beaten. He said he was being threatened with death while recording statement. Later he was taken to Uriri Police Station and he was placed in the cells. The Accused said he did not know the deceased. In cross-examination by Mr. Oimbo for state the Accused said that on 15.5.2019 he was working at Oyani Maasai for Francis. Francis was not the father of the deceased. Francis had sugarcane plantation. He said his duties were to herd cattle. He said the sugarcane is near the home. Other plantations are far from the home. The Accused said that on 15.5.2019 he was within the homestead and he didn’t leave the home. He said Francis was in company of Abraham’s parents when they were beating him. He said he knew Abraham’s father but he didn’t know Abraham. He said he came to know Abraham’s father on the material day. He said he didn’t go to hospital as he was slightly injured. The Accused said that he was beaten and chased from the home but he didn’t report that he had been beaten as it was late in the night. He said he heard PW3 Joseph and PW4 Leukadia testify and he said they were him as he used to see them in the area. The Accused said he started working for Francis in 2016 and he used to see the children although they came from far. The 2 children also knew him as Omogi. For 3 years he was in Eldoret and he didn’t go home a he didn’t have permission. The Accused said PW1 and PW3 had no differences with him and he did not know why they fabricated him as he didn’t commit the murder. At the close of accused person’s testimony submissions dated 30th January 2026 were filed on his behalf by the defence counsel. The Prosecution sought to rely on their evidence on record and indicated that they would not file any submissions. **Analysis and determination** Having considered the evidence on record for the Prosecution and the Accused person’s defence this court is to determine whether the charge against the Accused has been proved beyond all reasonable doubt. The prosecution case against the accused is founded entirely on circumstantial evidence coupled with the doctrine of “last seen with the deceased.” No witness saw the actual killing. The issue therefore is whether the chain of circumstances established by the prosecution irresistibly points to the accused as the person who murdered the deceased to the exclusion of any other reasonable hypothesis. Under Section 203 of the Penal Code, the prosecution must prove beyond reasonable doubt: 1. The fact and cause of death; 2. That the death resulted from an unlawful act or omission; 3. That the accused committed the unlawful act; and 4. That in committing the act, the accused had malice aforethought within Section 206 of the Penal Code. There is no dispute as to the death of the deceased Abraham Omiti Owiti. PW6 Dr. Awinda produced the postmortem report which established that the deceased died from decapitation of the head caused by a sharp object, most probably a panga. The injuries were unquestionably unlawful and demonstrate extreme violence. The critical issue is identification and linkage of the accused to the offence. The prosecution evidence on this aspect is notably strong despite the absence of an eye witness to the killing itself. PW3 Joseph Hitler, a child witness who testified on oath after voire dire examination, stated that he was with the deceased and other children on their way home from school when they entered a sugarcane farm to pick sugarcane. He testified that the accused apprehended the deceased, slapped him with a panga on the back, and dragged him into the sugarcane plantation while the other children ran away. PW4 Leocadia, another child witness, independently corroborated PW3 in material particulars. She equally testified that the accused chased the children, held the deceased, struck him with a panga and led him into the sugarcane plantation. Both witnesses were categorical that from the moment the accused dragged the deceased into the plantation, the deceased was never seen alive again. Their evidence was consistent, mutually corroborative and remained unshaken in cross-examination. Importantly, both witnesses knew the accused beforehand as the herdsman at PW1’s home. This was therefore evidence of recognition rather than mere identification of a stranger, which is generally more reliable. The evidence further shows that the following morning the deceased’s body was recovered inside the sugarcane plantation where the accused had dragged him. The body had severe cut wounds and complete decapitation. PW7, the investigating officer, confirmed observing blood stains and pools of blood within the plantation. The circumstantial evidence is further reinforced by the conduct of the accused immediately after the incident. PW1 testified that after receiving information that the accused had apprehended a child suspected of stealing sugarcane, the accused suddenly disappeared from the homestead before relatives of the missing child arrived. PW2 equally testified that when confronted, the accused denied apprehending the child and thereafter vanished. The accused remained underground for approximately three years until September 2022 when he unexpectedly returned and was arrested. Flight alone is not conclusive proof of guilt. However, unexplained disappearance immediately after a murder and prolonged absence are highly inculpatory circumstances when considered alongside the evidence placing the accused as the last person seen with the deceased. The defence offered by the accused is essentially a denial coupled with an assertion that he was assaulted by villagers and fled to Eldoret. However, the defence does not reasonably displace the prosecution case. The accused admitted knowing PW3 and PW4 and admitted being present at the homestead on the material day. He did not explain why the two child witnesses would falsely implicate him. Their evidence that he apprehended and led the deceased into the sugarcane plantation remained unrebutted. The accused’s assertion that he never left the homestead on the material day is a lie his employer and son to his employer confirmed that he left on the material day in the evening shortly before the relatives of the missing child arrived at the homestead of PW1 where he was residing. PW2 also went to the home and inquired from the Accused where the child he had apprehended was and denied knowledge of the said child. However, when PW2 returned later the Accused had disappeared. Although no murder weapon was recovered and no forensic analysis such as DNA examination was conducted, lack of such evidence cannot vitiate the existing cogent circumstantial evidence adduced by the Prosecution witnesses proving the offence beyond reasonable doubt. Absence of forensic evidence is not fatal if the totality of evidence irresistibly points to the accused. The chain of circumstances established is complete. The deceased was alive and healthy when walking home from school; The accused apprehended him while armed with a panga; The accused assaulted and dragged him into the sugarcane plantation; The deceased was not seen again alive after the Accused held and dragged him into the sugarcane plantation; The deceased’s mutilated body was recovered in the same plantation the following morning; The accused disappeared immediately after the incident and remained in hiding for about three years. These circumstances are incompatible with innocence and incapable of explanation upon any other reasonable hypothesis except that the accused was the perpetrator. As to malice aforethought, the manner of killing conclusively demonstrates it. Decapitation of an 11-year-old child using a sharp object, coupled with additional injuries, clearly establishes intention to cause death or grievous harm within Section 206(a) of the Penal Code. This court finds that the prosecution evidence is sufficient to sustain a conviction for murder. The evidence of the two child witnesses, corroborated by recovery of the body in the plantation and the accused’s subsequent conduct of flight, forms a strong and coherent evidentiary chain meeting the threshold of proof beyond reasonable doubt. The accused is found guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and is convicted accordingly under Section 322(1) of the Criminal Procedure Code. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 28TH DAY OF MAY, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Calvince – Court Assistant